“Criminal law of Omissions – draft essay outline”;
In the criminal law of Omissions the "checklist "of situations where the duty to act exists says little about whether these exceptions should exist or, indeed, weather the general rule of no liability for omissions is defendable.
Discuss . – write in short sentences and defend the conclusions
Basic outline of the essay (how I was going to write it/want it to go)
• We need omissions but they come with many problems in specific situations – so I will go through them
• Moral obligation – create on danger =, fam relation(howvevr don’t chose fam)
• Punishment for some omissions e.g. manslaughter is to harsh labelling
• Voluntary – not clear when duty arises/how long lasts/to what extent exists
• A defence to all omissions wouldn’t be practical as they are needed – would create a gap in the law if such a defence existed
Intro
2nd There is a great need for omission in the law. Omissions are the deviation from a pattern of activity that violates what a reasonable person would expect to be done , but this dosnt mean we owe a duty to everyone! In this essay the various situations where omissions result in liability for failing to act will be examined. However there are also circumstances which imposes to much on those guilty by omission. The fact that someone hasn’t actually done anything, rather failing to act is not reflected in the sentencing and libelling of those accused. This is just one problem that is to be discussed. (start with libelling point after my introduction)
1st This essay will be going through some of the many situations of which an omission could amount to a duty to act where liability can be sought. However many are also of the view that omissions should not amount to a conviction due to there being no action undertaken by the defendant. This is an ongoing debate amount scollers and this essay will be trying to resolve this issue. However the argument being portrayed throughout this essay, is that an omission can be just as bad as a physical act, also the ideas of duty is intertwined within our legal system so to say that one could defend against an omission as a general rule, doesn’t seem to fit in my mind. This isn’t good enough need to re do this!
Talk about conflict
Talk about
Main part going through different situations
1. creating dangerouse situation – (this is the argument against/editing of omissions – saying that adaptations need to be made e.g. R v Finlay
Giving someone the tools to create the dangerous situation themselves shouldn’t in itself be classed as an omission like in the case of Evans , giving someone heroin, them injecting and dying should not result in a homicide conviction If someone who walks away after giving them drugs isn’t culpable. The mere fact of knowing someone is dying should not negate the conviction. This is essentially promoting carelessness. A similar situation is outlined by Dennis J. Baker where a prostitute is forced to solicit by a pimp, he can be convicted of rape even though he isn’t physically raping her. Her clients are having sex with her, and they are making a non-culpable contribution to her rape. So should they also be convicted of rape as they are essentially giving the pimp the tools to carry out the rape. Like in Evens the sister gave the tools for the death through heroin. Also Kennedy (kenedy shows this should be the case – and that there has to be a direct link between the acts and the death not just a but for or a breach of a duty – strongly justifying a criminal conviction) supplying drugs is a "but for" cause of the death so should not be liable via omission like the client of the prostitute "adults………are able to make their own decisions when it comes to risking self-harm" . The scope of the creation of danger omission had been taken too far and could lead to further innocent convictions. This area of law needs clarification if it is to be enforced as it’s not clear at what point liability would occur. The right point is when the defendant has directly caused the dangerous situation as Miller did and not the person he bought the cigarettes of which could be argued following the case of Evens .
The American courts have also been finding people in evans position liable but this has been with much more proportionate labaling as Homicide is inappropriate in these situations. This point is emphisised by Andrew Ashworth "a charge of manslaughter should not be ….. even if the omission is deliberate". (failing to summon help should not result in a homicide conviction when the victim is the foolish one who has directly caused the harm) lets drug dealsers escape just because they weren’t present. Add in the cases from America and Canada (reword this – maybe put Andrew before the aerican point)
2. Another situation where one can become liable for not forfilling there duty is under a volanterary acceptance of care. An example of this can be seen in the case Stone and Dobinson . This cases raises the issue that people helping others are being punished for failing to continuously help them. As opposed to somone who never bothered to help would not be under any duty, can this not be seen as discouraging people to help out those in need? This area of law is clearly very one sided, in favour of those venerable.
This can be seen as a policy factor that needs to be changed in order to create a closer community. ( Maybe not) – this could be done either by imposing a duty to all (good Samaritan rule/legislation proposed by Canada) or by making it clear via statute when, to what extent and how to resolve ones self from the duty in legislation. ……… however the currnt state of the law may be more practical as it stands. This is clearly a doctrine that we need due to the vunrability people can find themselves in.
3
4.
Paragraph on weather should have no liability – maybe add in the good Samaritan rule (talk about how this is law in e.g. France and benefits brought but also negatives and conclude that then this should not be a rule to no liability) then weather should have the Samaritan rule in uk
Why shouldn’t have Liability for omissions
The idea that all omissions should be lawful is one that ought to be considered. Omissions can have an intruding effect on people’s autonomy. Andrew Simester goes on to say that this is allot more intrusive than prohibition of acts and doesn’t respect peoples freedom to live their own life, this is why he feels "failures to act" ought to be resisted . There are also many problems that come with omissions as discussed above. It can be harder to regulate and prove. MR is one element that can be difficult. This brings us to the clarity problem of the law on omissions. Distinguishing an act from omissions can be difficult. This can be seen by the two contrasting cases of Colucci and Goulis . Colucci published a statement intending to deceive, this was missing vital information but he was charged with publishing a false statement (an act). Moreover this could be suggested to be an omission as failed to do something (not an act) as suggested by Manning by providing limited information. However this is contrary to the courts view, situations such as this can seem confusing to the lay person. In the latter case the D concealed some items of his, failing to inform his trustee of his items, but this was held to be a mere failure to disclose information so amounted to an omission. So it is the judges relying on their common sense as for when to convict, this demonstrates the need for clarity throughout omissions. The courts need to set out what constitutes an omission in these ambiguous circumstances.
As we have discussed judges have allot of power in making a situation fit into one of the exeptions due to their vagueness. As Rose LJ stated in Sinclair "it is undesirable that there should be such elasticity …..potential defendants are unaware until after the event". This conflicts with the rule of law and the principle of legality in art.7 of the ECHR ."No one should be punished under a law unless it is sufficiently clear" stated Lord Biningham in Rimminton , this was due to the common law on omissions not being clear. A seriouse offence such as manslaughter should not be handed out lightly by the courts, emphasisning the need for greater clarity in this area of law.
The word permit is used in many statutes – is this an omission?
Why we shouldn’t allow a general defence to omissions?
Allowing all omissions to go unpunished would create a gap in the law, opening the floodgates to many unconvinced criminals.
Conclusion (strong) – don’t ass anything els to argument.
• New offence for people of some relation to V who isn’t the direct cause of death due to a homicide being conflicting with proportionality, laibaling , responsibility principles and its not neccesey to convict somone of such a high offence for simply being stupid. Wasting resorce.
• Are neccesey to ensure people are held to account for not acting in a way which is expected, not acting in some situations can be just as bad as acting
• Line needs to be drawn where a duty arises in certain situations. Voluntary acceptance of care. This law dosnt promote good acts but is very hard to correct.
As shown from Fagan showing the courts will stretch the law to fit the situation, the current sets of omission allow this. The common sense and moral judgement of judges to allocate blame where necessary using principles to uphold policy considerations. But this puts allot of trust in judges and creates huge flexibility, allowing for uncertainty in the law. But there isn’t a single set of exceptions that would allow for a just outcome every time without this flexibility.
• We NEED OMISSIONS THOUGH!
Bibliography
Books
Law Journals
Cases